Holding

The Supreme Court held that the GCM was validly constituted as there was no objection to the Judge Advocate's seniority and Rule 46 does not require seniority, so the High Court was not justified in interfering.

Summary

Group Captain S.P.S. Rajkumar was charged with nine counts of financial impropriety and was tried before a General Court Martial (GCM) which found him guilty of four charges and sentenced him to loss of two years seniority and a severe reprimand. The convening authority ordered a re‑assembly of the GCM, which then sentenced him to dismissal; the sentence was confirmed by the Chief of Air Staff. Rajkumar challenged the dismissal under Section 161(2) of the Air Force Act, but the Central Government rejected his petition. The Delhi High Court quashed the GCM’s decision on the ground that the Judge Advocate was junior in rank, although it allowed a fresh GCM. The Union of India appealed, arguing that no objection to the Judge Advocate’s seniority was ever raised and that Rule 46 of the Air Force Rules does not require seniority. The Supreme Court held that the High Court was not justified in interfering with the GCM’s composition and set aside its order, directing the High Court to consider only the appropriateness of the sentence. Consequently, the Union of India's appeal was allowed and Rajkumar's appeal dismissed.

Issues considered

Whether the General Court Martial was invalidly constituted because the Judge Advocate was junior in rank to the accused.
Whether the High Court was justified in quashing the GCM's decision on the basis of the Judge Advocate's seniority.
Whether the question of the appropriateness of the sentence should be remitted to the High Court for consideration.

Legislation cited

Air Force Act, 1950s. 161(2)
Air Force Rules, 1969s. Rule 40, s. Rule 46

Subjects

Service LawGeneral Court MartialAir Force ActJudge AdvocateSenior Officer AvailabilityMilitary JusticeSentence AppropriatenessWrit Petition

Judgment

UNION OF INDIA A
v.
S.P.S. RAJKUMAR AND ORS.

APRIL 24, 2007

[DR.ARIJITPASAYAT ANDLOKESHWARSINGHPANTA,JJ.] B

Service Law:

Air Force Act, 1950; S.161 (2)/Air Force Rules, 1969; Rules 40 and 46:
c
Dismissal form service-Group Captain-Allegations of financial
impropriety-General Court Martial-Dismissal from service-Finding and
sentence confirmed by Chief ofAir Staff-Filing of writ petition by respondent
before the High Court u/s 16(2) of 1950 Act-Central Government dismissed
the petition-Quashing the decision of General Court Martial, High Court D
observed that since the Judge Advocate was junior in rank, GCM proceedings
were vitiated-On appeal, Held: No plea raised by the Union of India in
appeals before Supreme Court as regards the findings of High Court that
GCM not validly constituted-High Court was not justified in interfering
with the conclusion of GCM holding that it was not validly constituted--
Since the question of appropriateness of sentence was raised before the High E
Court, the same was not examined by it in view of its conclusion that
composition of GCM was illegal, the High Court is directed to re-consider
the writ petition only on the question of sentence.

Appellant-Union of India alleged that the respondent, while serving as
Group Captain in the Indian Air Force committed large scale financial F
impropriety in the matter of purchases. A charge sheet listing 9 charges
relating to financial impropriety committed by him was issued. The General
~ourt Martial proceedings concluded with the finding that the respondent was
guilty of four charges. Accordingly, he was sentenced to forfeiture of two
years seniority and severe reprimand. By order dated 13.4.2000, the convening G
Authority of GCM, on review, ordered for re-assembly of GCM for revision of
the sentence. The GCM re-assembled and passed a fresh sentence of dismissal
and revoked the earlier sentence. The Chief of Air Staff confirmed the
findings and sentence. The respondent filed post confirmation petition under
Section 161 (2) of the Air Force Act, 1950 and the same was rejected by the
521 H
522 SUPREME COURT REPORTS [2007] 5 S.C.R.

A Central Government. In the meantime, respondent challenged the decision of
GCM. The Division Bench of the High Court vide its judgment dated 5.8.2002
quashed the decision of the GCM proceedings on the ground that the Judge
Advocate was junior in rank and, therefore, the GCM proceedings were
vitiated. However, liberty was granted to proceed afresh with GCM. The
B modification application filed by Union of India was dismissed by the High
Court. Hence the present appeals.

Appellant-Union of India contended that the vires of certain provisions
though raised were not pressed into service before the High Court; that in
terms of R.40 of the Air Force Rules, 1969, member of GCM should not be
C junior, but it permits the juniors to be taken as members in certain
circumstances; that the provisions in the Army Act and under the Army Rules
are entirely different from Air Force Act and Air Force Rules; that any Rule
similar to Rule 103/104 of the Army Rules did not exist in the Air Force
Rules; that up to the date of judgment there was no plea relating to the lack
of seniority of the Judge Advocate, besides, order of the GCM clearly indicated
D that there was no officer available who was senior; and that the High Court
had erred in holding that the relevant date was the date of filing of the writ
petition. It should be the date of the judgment of the GCM.

Respondent submitted that the judgment of the Supreme Court in Union
of India and Anr. v. Charanjit S. Gill and Ors., JT [2000) 5 SCC 135 has full
E application under the Air Force Rules and the Army Rules; that provisions
relating to composition of GCM are the same, and that the convening order
does not speak of any non-availability.

Dismissing the appeal, the Court
F HELD: I.I. There was no challenge.to the finding that there was no
senior army officer available. Rule 46 of the Air Force Rules, which relates
to the eligibility of the member does not speak of seniority. It speaks of the
same rank or superior rank. There was no objection at any point of time about
the lack of seniority. In fact the High Court has fallen into error in holding
G that the relevant date is the date of filing of the writ petition.
(Para 131 (525-H; 526-A)

1.2. There is also no plea raised in these appeals as regards the finding
that nobody who was senior was available. Therefore, the High Court was not
justified in interfering with the conclusions of the GCM holding the same to
H be not validly constituted. The appeals of the Union oflndia stand allowed to
U.01. v. S.P.S. RAJKUMAR(PASAYAT,J.] 523
that extent. Appeal filed by the respondent sans merit. [Para 14) A
[525-H; 526-A)

1.3. The question of appropriateness of the sentence was raised before
the High Court. The High Court did not examine that aspect in view of the
conclusions that the composition of the GCM was not legal The High Court
shall only consider that aspect. Though certain pleas of ma/a fide appear to B
have been raised in the writ petition, the High Court has specifically noted
that, that plea was not pressed into service. Therefore, the High Court shall
consider the writ petition only on the question of sentence and no other issue.
(Para 15) (526-C-D)

CIVIL APPEALLATE JURISDICTION: Civil Appeal No. 127 of2003. c
From the Judgment and Order dated 05.08.2002 of the High Court of
Delhi at New Delhi in Civil Writ Petition No. 4884 of2001.

WITH
D
C.A. Nos. 128 & 606 of2003.

Vikas Singh, ASG., Ashok Bhan, Sadhna Sandhu, R.C. Kathia, Rajhi
Singh, Sushma Suri and B.V. Balaram Das for the Appellant.
.•
Narendra Kaushik and Ashok Kumar Sharma for the Respondents. E
The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. I. These three appeals relate to the order
passed by a Division Bench of the Delhi High Court allowing the writ petition
filed by S.P.S. Rajkumar, the appellant in C.A.No.128 of2003. The other two F
appeals have been filed by the Union of India, i.e. Civil Appeal No.127 of2003
against the main judgment and Civil Appeal No. 606 of 2003 against the
modification order.

2. ·Background facts in a nutshell are as follows:
G
Respondent-Rajkumar joined Air Force as a Commissioned Officer in the
Logistics Branch. He rose to the rank of Group Captain in 1998. According
to the appellant-Union of India, respondent-Rajkumar committed large scale
impropriety in the matter of purchases while he 'Vas functioning in the rank
of Group Captain. On 12.1.2000, the charge sheet was accordingly issued H
listing out 9 charges relating to financial impropriety _committed by him. The
524 SUPREME COURT REPORTS (2007] 5 S.C.R.

A conveying order for the Assembly of the General Court Martial (in short the
'GCM') was issued and Judge Advocate was appointed. On 24.1.2000, the
GCM proceedings assembled on a charge sheet containing nine charges, all
of which pertained to improper purchase procedure and financial impropriety.
On 13.3.2000, GCM proceedings concluded with the finding that the respondent
was guilty of four charges. Accordingly, it sentenced the respondent to
B forfeiture of two years seniority and severe reprimand. By order dated 13.4.2000,
the Convening Authority ofGCM i.e. AOC- Incharge, Maintenance Command
Head Quarters, Nagpur, on review, ordered for re-assembly of the GCM for
revision of the sentence.

C 3. On 24.4.2000, this Court in Union of India and Anr. v. Charanjit S.
Gill and Ors., JT (2000] 5 SCC 135 interpreted certain provisions of the Army
Act, 1950 (in short the 'Act') and the Army Rules, 1954 (in short the 'Army
Rules') holding that the Judge Advocate should be equal or superi<t to the
rank of the accused officer just like the Rules provided for the members of
GCM. However, this Court gave prospective effect to the judgment declaring
D that the same shall not be applied to proceedings which have attained finality
and also will not be applied to pending cases in courts where such a plea has
not been raised. On 13.5.2000, pursuant to the order of 14.3.2000, the GCM
,
re-assembled and passed a fresh sentence of dismissal and revoked the earlier
sentence.
E
4. The respondent-Rajkumar submitted two pre-confirmation petitions
on 25th May, 2000 and 30th June, 2000.

5. The Chief of Air Staff on
.- 7.9.2000 confirmed the findings and sentence.
He also dealt with the aspect of the seniority of the Judge Advocate. The
F Chief of Air Staff cited two reasons on the aspect of Judge Advocate, (a)
question of seniority of Judge Advocate was not raised before the GCM; and
(b) in fact Judge Advocate of sufficient seniority was not available and by
doctrine of necessity the concerned Judge Advocate was the only available
officer.

G 6. The respondent-Rajkumar filed post confirmation petition under Section
161 (2) of the Air Force Act, 1950 (in short the 'Air Force Act') on 30.1.2000
and the same was rejected by the Central Government on 24.9.2001. By
judgment dated 5.8.2002, the Division Bench of the High Court quashed the
decision of the GCM proceedings of dismissal of service on the ground that
H the Judge Advocate was junior in rank and, therefore, the GCM proceedings
were vitiated. However, liberty was granted to proceed afresh with GCM. The

I
U.01. v. S.P.S.RAJKUMAR[PASAYAT,J.] 525

modification application filed by Union of India was also dismissed by the A
High Court.

7. In support of the appeal, learned counsel for the Union of India
submitted that the vires of certain provisions though raised were not pressed
into service before the High Court. The only ground pressed into service was
that the Judge Advocate was junior in rank. Therefore, the proceedings were B
illegal.

8. With reference to Rule 40 of the Air Force Rules, 1969 (in short the
'Air Force Rules'), it is submitted that member of GCM should not be junior,
but it permits the juniors to be taken as members in certain circumstances. The C
Judge Advocate is not a member of GCM.

9. It is not a case where at the first instance respondent- Rajkumar had
raised any objection about the alleged lack of seniority of the Judge Advocate.
It is submitted that the provisions in the Army Act and under the Army Rules
are entirely different from Air Force Act and Air Force Rules. It is pointed out D
that any Rule similar to.Rules 103/104 of the Army Rules did not exist in the
Air Force Rules.

IO. The GCM proceedings were over. Only the sentence part remained
to be finalized. There was no objection raised during the GCM proceedings
and even no amendment was sought for to pending proceedings. Upto the E
date of judgment there was no plea relating to the lack of seniority of the
Judge Advocate. The order of the GCM clearly indicated that there was no
officer available who was senior.

I I. It is submitted that the High Court had erred in holding that the F
relevant date was the date of filing of the writ petition. It should be the date
of the judgment of the GCM.

12. In reply, learned counsel for the respondent-Rajkumar submitted that
the Gill's judgment (supra) has full application under the Air Force Rules and
the Army Rules. Similar provisions relating to composition of GCM are the G
same. The convening order does not speak of any non-availability.

13. It is to be noted that there was no challenge to the finding that there
was no senior army officer available. Rule 46 which relates to the eligibility
of the member does not speak of seniority. It speaks of the same rank or
superior rank. There was no objection at any point of time about the Jack of H
526 SUPREME COURT REPORTS [2007] 5 S.C.R.

A seniority. In fact the High Court has fallen into error in holding that the
relevant date is the date of filing of the writ petition.

14. There is also no plea raised in these appeals as regards the finding
that nobody who was senior was available. Therefore, the High Court was not
justified in interfering with the conclusions of the GCM holding the same to
B be not validly constituted. The order is set aside. The appeals of the Union
of India stand allowed to that extent. Raj Kumar's appeal is sans merit.

15. At this juncture, it is to be noted that the question of appropriateness
of the sentence was raised before the High Court. The High Court did not
C examine that aspect in view of the conclusions that the composition of the
GCM was not legal. The High Court shall only consider that aspect. Though
certain pleas of ma la fide appear to have been raised in the writ petition, the
High Court has specifically noted that, that plea was not pressed into service.
Therefore, the High Court shall consider the writ petition only on the question
of sentence and no other issue.
D
16. The appeals are accordingly disposed of. There will be no order as
to costs.

S.K.S. Appeals disposed of.

••